“The Art of Cross Examination,” by Andrew J. Schatkin

“The Art of Cross Examination,” by Andrew J. Schatkin

My dear readers and thinkers, I place before you an essay entitled “The Art of Cross Examination.” I am not at present a lawyer but have a law degree and so can comment on this subject.

To the nascent practitioner shortly graduated from law school, cross examination is either regarded as a species of Delhic mystery or as an easy play on words. The law student whose total knowledge and experience may consist of having to this point having analyzed scores of appellate divisions and having answered law school class and examination hypotheticals, and finally the state bar examination, will often approach this daunting task of his first cross examination with some fear and apprehension even if he or she has sufficient motivation, knowledge, and imagination. For the truth of the matter is that an effective searching, searing, and probing cross examination is the heart and soul of the creation of a defense in any criminal case. The defense lawyer may, it is true, have experts, alibi witnesses, and eyewitnesses to establish or buttress his case or in turn be able to effectively discredit the State in a criminal case. Yet, a defense case must ultimately be won with a pointed cross examination that will serve to bring forth those sparks of truth that would otherwise remain hidden under the facial truth of the State’s case. Cross examination probingly-executed will not only serve to discredit and shake the People’s case but bring about a closeness and nearness to truth that would in the interaction and play and drama of trial remain elusive.

In short, an effective cross examination is integral to the inauguration and creation of a defense in a criminal case. How then can the inexperienced practitioner approach this veiled mystery? The over familiar bromide is total preparation. If the student has fully investigated and prepared his case, locating all witnesses, having gone to the scene and reviewed and re-reviewed all police reports, he may be able to anticipate the direct examination of the People’s witnesses in a criminal case. If, for example, he has all discovery and subpoenaed material in hand, he may be able to detect the obvious inconsistencies in the people’s case, if such exists. For example, if the defendant has in a robbery case an identification defense relying on inconsistencies of weight, height, and bodily and facial characteristics, such as the absence of a beard or scar in one report, and its presence in another, this kind of discrepancy can serve to create doubt. If the arrest was late at night, undoubtedly the police witnesses will describe in sure detail the area as well-lighted. In fact, this may not be so. If the defense in an undercover drug sale of narcotics is perhaps due to entrapment, cross examination can be prepared in light of this defense to discredit the people’s case and create doubt. A rape charge can be prepared with a defense of consent where an extended common law relationship existed and so a searching cross examination can be prepared.

In sum, the wisdom of total and thorough preparation applies to cross examination. There is no easy road whereby a properly perceptive and anticipative cross examination can be evaded without thorough reflection on and total preparation of the case. Even when the cross examination is fully prepared, every question written out and artfully delineated, an elusiveness exists as a barrier to an effective and thorough cross examination that may take years for the inexperienced practitioner to pierce and master. For a trial is a dynamic. Questions inevitably arise and are asked, answers given that the intuitive examiner must be prepared to respond to. Unknown and dazzling doors to facts may come forth in the dynamic and drama of trial that only the experienced practitioner with honed and sensitive intuition can respond to and pursue. Cross examination, however well-prepared, is always and must be an intuitive art. Years of experience are required to master and be alert to those sparks and flames of truth and a sensitivity developed such that in split seconds the criminal lawyer can leap to the gap to a possible victory at trial that once open can reveal that fraction of truth and leap of faith leading to doubt and ultimate acquittal.

Finally, in addition to thorough preparation and the ability to respond to the quick and elusive phase, answer, or questions, there is another factor in building the effective cross examination that may be termed, for want of a better word, the ability to hammer. Thus, for example, where the charge is assault and the injuries possibly minimal, questions directed to the minimal nature of the medical treatment rendered the dearth of doctor’s visits, the lack of prescriptions, and the unlikelihood of real pain and suffering because of these injuries so-called, must be hammered and literally bludgeoned in order to create the doubt necessary to obtain the sought for acquittal. Question must be followed by question without continued hammering, probing, and chipping away at the witness’s veracity. Nothing should be left for the jury to figure out or infer but multiple probing and disconcerting questions following one or the other.

Preparation is the initial basis and groundwork for the searching cross examination. Question must be followed by question, answer by successive answer, demolishing the witness and the people’s case. But with it all in the dynamics of trial and its ongoing drama and play, preparation cannot entirely anticipate the unforeseen word, phrase, or question that may serve to open the door to that most elusive element and ray of truth, however imperfect, and however broken and ragged. It is this ability, the ability to intuitively respond to the flying sparks at trial, that sets apart the experienced cross examiner from the novice and it is that sensitivity that can only be developed with time and experience. It is this element that makes cross examination not a mechanical exercise but an art whereby the cross examiner may respond and paint those fragments of truth into a total picture that lights the defense and leads to ultimate victory.

This essay is taken, with alterations and modifications, from my book “Select Legal Topics,” pub. 2011, by University Press of America, pp. 386-388.